THE LAW BLAWG

Gambling With Your Life?

2007-10-13T15:59:00.000-04:00

In 1831 the Supreme Court granted sovereign status to the Native American tribes. With this recognition of sovereignty by the U.S. courts came the shield of 'sovereign immunity' in the eyes of the law. In fact, the tribes do not only benefit from sovereign immunity, but each tribe is responsible for creating its own legal system, as well as prosecuting and adjudicating any claims occurring on tribal territory. While many tribes have promulgated prescriptive codes of law and formal rules of court--in a manner not unlike the 50 American states and federally governed territories--others lack the formal mechanisms and transparency we have become accustomed to dealing with in developed nations.

The cynic amongst us may dismiss the foregoing as a strictly an issue affecting those Native Americans who choose to live on the reservations. The cynic would be wrong. Between casinos, tourism, volunteering, and even items as trivial as tax-free cigarettes, many of us have ventured onto tribal lands for one reason or another. It may surprise you then to learn that your rights are as limited in those lands as the tribes wish them to be.

Here's a startling Wall Street Journal article detailing just this issue: (http://online.wsj.com/article/SB119213210560756308.html?mod=hpp_us_pageone)

For those of you who have ever come into contact with the reservations and 'nations' of the American Southwest, particularly those in Arizona and New Mexico, the article brings the overwhelming numerosity of 'drunk driving' warning signs to life through tragic detail.

Gibson & Behman has several lawyers admitted to practice on the lands of the Mohegan tribe in Connecticut. We can attest to the fact that the Mohegans have developed an evolved legal system with prescriptive rules of law.

A Brave New World

2007-07-29T12:24:00.000-04:00

Intellectual Property law has been evolving at the pace of the internet age. New rights, obligations, and crimes have been created, and everything is being re-analyzed in a new context. Perhaps no single platform expresses as broad an array of these issues as does Linden Research Inc.’s Second Life.

Second Life (“SL”) is, in the words of its creators, “a 3-D virtual world entirely built and owned by its residents.” SL launched to the public in 2003 and is currently creeping up on 8.5 million “residents.” These residents can interact in nearly any way one might in the “real” world; be it romantically, business-oriented, as friends, or, as enemies. One need not even inhabit the body of a human. In fact, Judge Posner of the Seventh Circuit was recently speaking at a conference in SL when he was distracted by a 6-foot raccoon. As it turns out, the raccoon was an IP attorney from Washington, D.C.

The law has many applications in SL, from transactional, to the conveyancing of virtual “real” property, to strict intellectual property protection. You might even be surprised to know that SL even has its own currency, the Linden dollar, which trades at 250 to $1 USD, and can be bought and sold at various online exchanges, including eBay. (http://secondlife.com/whatis/currency.php)

And where there is money, there is speculation. Land speculation, to be exact. In fact, SL’s first resident millionaire, Anshe Chung, assembled her real-world fortune by buying, developing, sub-dividing, and selling Second Life land. “Chung currently owns hundreds of servers’ worth of land, most of which are sold or rented to other users as a part of her ‘Dreamland’ areas. Within Dreamland various levels of zoning rules are enforced; most other land in Second Life is unzoned.” In fact, Anshe controls not only the zoning in her areas, but Linden Lab’s CEO has referred to Anshe as “the government” when describing the regions she controls. Ibid. For those of you familiar with SL or Anshe, you may recall her avatar gracing the cover of Business Week in May of 2006 (http://www.businessweek.com/magazine/content/06_18/b3982002.htm), celebrating her 30-month haul of over $2,000,000.00. Recently Chung took real-world steps to solidify her virtual-success: she incorporated “Anshe Chung Studios, Ltds.” In China and currently employs over 60 programmers and artists. (http://www.anshechung.com/)

In addition to these new-found entrepreneurial success stories, giants of the real world economy have flocked to ensure they have presence and representation in SL. MTV has a club open for business; Toyota sells cars; IBM has a dozen islands.

*****

Success of this nature and magnitude—as anyone who has done business in developing countries can tell you—depends on a developed legal and regulatory network. In other words, rights only exist to the extent that they are both exercised and recognized. To that end, Linden Labs has taken an extremely unique position. Cory Ondrejka, Linden’s CTO, allowed individual user’s to acquire intellectual property rights over their own creations, be it an avatar, a plot of land, or a business. As John Bringardner’s interesting Law.com article indicates: “Linden's Ondrejka and its CEO Philip Rosedale . . .have publicly made much of the fact that their terms of service agreement “recognizes residents’ right to retain full intellectual property protection for the digital content they create in Second Life, including avatar characters, clothing, scripts, textures, objects and designs.” Writing Linden’s IP policy fell to vice president-international and general counsel Gene Yoon, a former attorney at Venture Law Group who joined Linden after serving as GC at wireless company Airespace, Inc. The policy says these rights are enforceable both within the game and offline, for both nonprofit and commercial ventures. As Linden’s Web site states: “You create it, you own it -- and it's yours to do with as you please.” (http://www.law.com/jsp/article.jsp?id=1170237755271)

But, some users have already encountered the limits of Linden Lab’s digital utopia. Bringardner contiues: “while Linden management espouses a magnanimous view of its users’ IP, its end-user license agreement reserves the right to shut down any user’s account at any time.” Ibid. To wit: “in May 2006, Marc Bragg, a solo attorney in West Chester, Pa., and one-time Second Life denizen, filed a complaint against Linden in the court of common pleas of Chester County, Pa. Bragg had discovered a loophole in the game's virtual land auction system and bought properties on the cheap before other players could make a bid. Linden eventually caught on and kicked him out. Bragg sued, arguing that the company was blocking him from $8,000-worth of in-game assets, the “land” that he owned.” Id.

“Linden’s attorney, Andrew Soven, a partner at Reed Smith in Philadelphia, has filed to remove the case to an International Chamber of Commerce arbitration in San Francisco, as specified by a provision of the Second Life terms of service. Relying on the ICC gives Linden recourse in the event of complaints brought by Second Life users in other countries, but it also helps resolve disputes without setting federal precedent . . . On Jan. 4, Eastern District of Pennsylvania judge Eduardo Robreno certified federal jurisdiction for the case, acknowledging that damages could exceed $75,000.” Id.

*****

The expansion and evolution of legal rights in SL, is, naturally, attracting greater attention from the legal community. While some attorneys delve right into SL for purely recreational purposes, others are actively rainmaking and resolving disputes. In fact, in April the first organizational meeting of the Second Life Bar Association was held. (http://www.slba.info/)

Even more fascinating is the fact that Portugal has established an alternative dispute resolution (ADR) forum within SL. According to the SL press release, the Portugese Ministry of Justice “in cooperation with the University of Aveiro and the Faculty of Law of Lisbon New Univeristy” will launch an “e-Justice centre” for purposes of mediation and arbitration for resident avatars of SL. (http://virtuallyblind.com/2007/07/27/portuguese-ministry-justice-adr-second-life) And, the building isn't too shabby either.

I suspect we won’t see the likes of the white shoe firms until they follow their Fortune 500 client’s leads and buy some glamorous property in SL purely for marketing purposes, but it will be interesting seeing who takes the plunge when.

Should you need help navigating the legal labyrinth of SL, this author does business as ‘Aristotle Raymaker.’ I hope to join the Second Life Bar Association shortly, and am scouting locations for an office.

The October 2006 Term: the End of a Dream?

2007-07-11T21:03:00.001-04:00

Since Nixon nominated Warren Burger as Chief Justice, one of the chief conservative domestic policies has been an effort to turn back the clock on the civil liberty advances afforded us by the Warren Court. While the urge for “law-and-order” judges in the 70s has, more recently, given way to “strict-constructionism,” the effort to eliminate many of the evolved rights of the Warren Court has continued unabated with the resurgence of the right in the latter-half of the twentieth century. In fact, since the days of Scalia, and certainly Thomas, so-called constructionists have been willing to side-step fundamental doctrines such as stare decisis for a desired result. Accordingly, since Bush’s election, many on the left—and, indeed, many citizens rightly proud of their civil liberties, such as this author—have feared the repercussions of his power to fill any vacancies that may arise on the Supreme Court.

Then, naturally, the vacancies came.

First, Roberts.

Then, Alito.

While Alito provided a modicum of relief for civil libertarians, due to a spate of his prior opinions, particularly on First Amendment issues, his contentious nomination hearings accurately forecasted his subsequent slide to the right upon ascendancy.

*****

While I was surprised about the recent Gonzales opinion, which upheld the constitutionality of the Partial Birth Abortion Ban Act (2003), the inherent ambiguity in the legalese “undue burden” almost guaranteed a successful challenge to many abortion practices. Nevertheless, two factors buoy my continued desire for true female personal autonomy in the United States.

First, I trust that the pace of medical technological progression—as well as pharmaceutical advances coupled with greater openness of availability, i.e., the wide-scale carrying of the morning-after pill at national pharmacies—avails women of a lesser degree of reliance upon partial-birth procedures.

Second, I was fortunate to witness a debate produced by the Harvard Federalists Society at Harvard Law during the Alito nomination hearings. I was pleasantly surprised of the force and cogency of Professor Alan Dershowitz’s arguments that, in fact, the fear of a repeal of Roe v. Wade by the newly enlarged conservative bloc on the court was misplaced. Dershowitz contends that—besides the fact that civil groups such as the ACLU would closely monitor any opinions tip-toeing in that direction and mobilize their legions—an outright repeal would overturn so many decades of stare decisis and cultural norms that it would be an all-time call to arms for liberals, rendering a statutory, political, and, later, judicial backlash with a probable Constitutional Amendment resulting.

So, while the new conservative court has shown an unabashed willingness to kick stare decisis aside (Stenberg had deemed bans on partial birth abortions unconstitutional in only 2000), ultimately, I reserve judgment on the Gonzales v. Carhart opinion.

*****

More concerning, in my opinion, is the court’s opinion in the matter of Parents Involved in Community Schools v. Seattle School District No. 1, et al. Briefly, this suit is a challenge to the use of race as a criteria in the evaluation of students in voluntary desegregation plans by school district. The plaintiff-parents contend that such criteria violate the rights afforded their children under the Equal Protection Clause of the Fourteenth Amendment in that they cannot attend the closest schools to their homes due to their race.

Seattle—and the other municipalities involved—used race only as a criteria to advance the express purpose of providing an integrated educational environment to its students. Seattle, like so many American communities, suffers from tacit segregation on socio-economic lines—a lasting effect of the failures of reconstruction and broken promises of the Civil Rights era.

Unbelievably, the Roberts 5-4 conservative majority—stocked with professed “strict-constructionists” of the first-order, mind you—twisted decades of jurisprudence and obvious legislative and Constitutional intent to reach one of the most politically-decided opinions I can recall since Gore v. Bush.

As the New York Times pointed out in an op-ed, the Equal Protection Clause of the 14th Amendment, “which was adopted for the express purpose of integrating blacks more fully into society,” is now being wielded as a tool for “protecting white students from integration.” (http://www.nytimes.com/2007/07/05/opinion/05thu1.html?_r=1&oref=slogin)

I believe the successful, liberal, public education of our children is our strongest answer to a world of uncertainty and American decline. There can be no doubt that true integration must be practiced in each of our communities for public education to succeed in the manner in which we need it to. That, for me, is the truly disappointing aspect of the Parents v. Seattle decision. To think that it may be the cornerstone upon which decades of likeminded jurisprudence is laid is frightening, to say the least.

Lest one dismiss this as an issue in the abstract, it has already produced growing ripples in New England. The city of Lynn, Massachusetts has, like Seattle, de facto housing segregation, with white children primarily residing in the north and minority children residing in the south. Accordingly, Lynn enacted a voluntary desegregation plan for the benefit of all of its children that applies to its 18 elementary schools.

Parents in Lynn who challenged this plan 8 years ago and failed, have revived their efforts on the strength of the Supreme Court opinion. Ultimately, the Parents v. Seattle opinion could strike the death-blow to integrated educational environments in “roughly 20 school-assignment plans in Massachusetts, as well as the Metropolitan Council for Educational Opportunity , which has bused minority students to affluent suburban schools since 1966.” (http://www.boston.com/news/nation/articles/2007/07/05/challenge_to_lynns_race_policy_is_revived/)

In fact, in Justice Stevens’ blistering dissent, he rightfully addresses the court’s stunning reversal of precedence by pointing to the Supreme Court’s “approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system.” See School Comm. of Boston v. Board of Education, 352 Mass. 693, 227 N. E. 2d 729. Stevens continues:

“Rejecting arguments comparable to those that the plurality accepts today, that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoalsin the Fourteenth Amendment.” (http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf, p. 105)

Founder, though, may be too lenient a word. I suggest an all out shipwreck may be approaching. Practically, this means what it always does to the underprivileged: the rich get richer. Stevens illustrates the amazing lengths today’s conservative court is willing to go to reach a desired result in stark terms by concluding his opinion as follows:

“The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” Id., at 108.

Stevens is not alone in his distrust of these developments, even if his dissent stands as such. The Breyer dissent, in which he is joined by Stevens, Ginsburg, and Souter, concludes in stark terms that speak to disillusionment with the new court’s efforts to forestall, if not outright destroy, the social and cultural gains of the middle of the 20th century:

“Finally, what of the hope and promise of Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live . . .
. . . The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”

*****

One can only hope that such Herculean efforts to side-step history, intent, tradition, and precedent are not wielded in as pompous and cavalier a manner as it was in this matter. If the Roberts court continues with this conservative 5-4 majority, the United States as we know it could be a very different place in 15 years. I suppose Bush has left us with something lasting other than a bankrupt Treasury.

The full Parents Involved in Comm. Schools v. Seattle School Dis. No. 1, et al. opinion: http://www.supremecourtus.gov/opinions/06pdf/05-908.pdf.

(**UPDATE** Here's an interesting take on the current 5-4 deadlock: http://www.nytimes.com/2007/07/26/opinion/26smith.html?_r=1&bl&ex=1185854400&en=37d7f499b47e3164&ei=5087%0A&oref=slogin)

A Kick in The Pants

2007-07-11T12:20:00.000-04:00

Roy Pearson, a D.C. administrative law judge who filed, tried and lost a $54 million lawsuit against the Korean immigrants who own his neighborhood dry cleaners, just won't go quietly into the night.

Here's a link to a Washington Post article on Pearson's renewed resolve: http://blog.washingtonpost.com/rawfisher/2007/07/the_54_million_pants_suit_that.html

Perhaps you'd be surprised to know these slacks were once valued at $65,400,000.00 (if you are unfamiliar with this case be prepared for laughter, tears, rage, or a combination of all three): http://www.youtube.com/watch?v=hNG3oRVnC4M

Evidently Judge Pearson is no longer hearing cases at this time, but it is reported he remains on the D.C. payroll. Are you outraged that an official of the court would pursue such a frivolous and potentially vexacious action AND continue to be rewarded with a fat salary of taxpayer dollars? Let it be known to the D.C. Bar, which should have acted against Pearson some time ago:

The District of Columbia Bar
1250 H Street NW, Sixth Floor
Washington DC 20005-5937
1-877-333-2227 (Toll Free)
E-mail: ethics@dcbar.org

Or, perhaps, if Judge Pearson had some more mail to respond to, he wouldn't continually waste our taxpayer money and scarce judicial resources on a ridiculous personal vendetta:

Roy L. Pearson, Jr.
3012 Pineview Ct NE
Washington, DC 20018-1617
Email: roypearsonjr@verizon.net